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Criminal Appeal No.17 of 1985, decided on 21st , March, 1987:

---S.302--Ocular testimony--Whether furnishing safe basis for conviction---Complainant a retired police constable--F. I. R. lodged after 42 hours at police post at distance, of few miles from place of occurrence--Police station falling on way to hospital just on road side--Deceased taken to dispensary in eight hours at few miles- -Other eye-witness also related to deceased from him for not lodging report Delay and there was no explanation fund, inordinate--Occurrence in village of 42 hours in lodging report produced to support prosecution 'village Abadi--None of residents spot found doubtful--Other witness case--Presence of complainant at time after death of deceased appearing before police for first shown having other enemies i.e10 days after occurrence Deceased taking injured to dispensary Inordinate delay in lodging F.I.R. and appearance of independent in eight hours by complainant and non that complainant had not witnesses of locality, held, would show against prosecution-complainant seen occurrence and would weigh heavily could hardly furnish safe basics for convicting was inspiring confidence which charge--Acquittal ordered in circumstances.

Muhammad Sadiq and another v. The State P L D 1960 S C 223 ref.

Sardar Muhammad Ishaque Khan for Appellant.

Dr. G.S.S. Khan for A.A.-G. for the State.

Iftikhar Hussain for the Complainant.

Date of hearing: 21st March, 196'7.

Hakam Khan son of Bahadar Khan caste Awan aged 58 years, cultivator was tried alongwith his wife Ms't. Fateh Bibi by Sessions judge Jhelum, for having committed the .murder of Separas Khan aged 40 years in furtherance of their common intention on 15-2-1984 in village Bhal at a distance of 15 miles from police station Kallar Kahar, district Chakwal. Learned trial Court vide its judgment dated 30-1-1985 giving benefit of doubt acquitted Mst Fateh Bibi but convicted Hakam Khan under section 302, P.P.C. and sentenced him to imprisonment for life and a fine of Rs.15,000/- or in default to undergo two years' R.I. It was also directed that the fine if realised shall be paid as compensation to the heirs of the deceased. Feeling aggrieved thereby the convict has filed Criminal Appeal No.17/1985 while Waris Khan complainant in the case has filed Criminal Revision No.118/1985 seeking enhancement of sentence awarded to the appellant. Both the appeal as well as the revision shall be disposed of by this single judgment.

2. Prosecution case as disclosed at the trial was that on the fateful day (15-2-1984) at Rotiwela (noon time) Hakaim Khan (appellant) tried to block the passage leading to the: lands of Separas Khan (deceased) to which the deceased took exception. This led to exchange of hot words between them but the matter was patched up by invitation of the villagers. In the evening at;5 p.m., Separas Khan(deceased) with his flock of sheep 'while passing in front of the door of Hakam Khan (appellant) was attacked by, the latter and his wife Mst. Fateh Bibi with sticks in order to avenge the quarrel which took place earlier at noon time. The occurrence was witnessed by Waris Khan complainant (PW. 9) brother of the deceased, and Aslam Khan (PW. 6) first cousin of Lal Khan husband of sister of the deceased, who were per chance standing in front of the' appellant's house. '

3. Separas Khan was removed in injured condition by Waris Khan complainant to Civil Dispensary Bhaun where-Dr. Khalid Javed (PW.3) examined him at 1 a.m. (mid-night) and noted following injuries of his person: --

(1) Swelling 6" x 7" on left temporal parietal region of the head and front of left side of face with bluish and black swelling 2" x 1" of left upper lid and 2" x 1" of left lower lid. Eye could not be opened for examination due to swelling.

(2) Swelling 1" x 4" on vault of skull in midline posteriorly.

(3) Swelling 4 " x 4-3/4" on right temporal parietal area of head.

(4) A lacerated wound x 1/8" x skin deep on the outer, border of right eyebrow.

As patient was unconscious therefore the doctor referred him to Chakwal Hospital where he was admitted for treatment. It appears Chakwal Dr. Munawar Ahmad (PW. 1) X-Rayed patient's injuries on 18-2-1984 and drew up his report Ex.PB on 19-2-1984 declaring injury 18-2-1984 No.1as grievous and the rest as simple. On 18-2-1984 the Chakwal doctor however had referred the patient to Neuro-Surgeon Holy Family doctor Hospital, Rawalpindi, where he was operated upon and died subsequently.

4. On 17-2-1984, that is, next day of admission of Separas is Khan

(deceased) in Chakwal Hospital, Waris Khan complainant, taking medico-legal report issued by Dr. Khalid Javed (PW. 3) of Bhaun Dispensary, went to police post Buchhal Kalan and lodge report Ex.PH of the incident there at 10.30 a.m., A.S.I. Muhammad Akbar (PW.12) had jotted down this report in Rozenamcha of the police post and waited for the result of the injuries. He received letter Ex. PB from the doctor declaring head injury as grievous on ' 21-2-1984 where

upon he drafted complaint Ex.PF under section 307/:34, P.P.C. based on report Ex.PH and sent it for registration of regular case at police station Kallar Kahar and consequently F.I.,R. F.x.PF/1 was police n up by M.H.C. Muhammad Akram (PW. 7).

5. Separas Khan died on 24-2-1984 whereupon the offence under section 307, P.P.C. was changed to section 302, P.P.C , and having section retired inquest report Ex.PN of the deceased A.S.I- Muhammad prepared (P.W. 12) sent the dead body for post-mortem examination under police escort. Dr. Syed Abid Hussain Shah (PW. 2) performed autopsy on the dead body. He found fracture of left temporal, parietal and frontal bones and right parietal bone and opined that the injuries were individually and collectively sufficient to cause death in the ordinary course of nature. Probable duration between injuries and death was given as 8/9 days and between death and post-mortem examination as within 22 to 40 hours.

6. A.S.I. Muhammad Akbar (PW. 12) arrested both the accused on 27-2-1984 and recovered stick P.6 from Hakam Khan on 2-3-1984 bearing no blood stains. Waris Khan complainant produced blood-stained clothes P.3 to P.5 of the deceased before the Investigating Officer which were secured under memo Ex.PJ. The Investigating Officer found Mst. Fateh Bibi as innocent and placing her name in column No.2 sent challan against both the accused to Court.

7. At the trial, prosecution examined 12 witnesses in -support of its case and mainly relied on the testimony of eye-witnesses Waris Khan and Muhammad Aslam P. Ws. The accused when examined under section 342, Cr.P.C., denied the allegations and professed innocence. Replying question No.8, why this case against you, Hakam Khan (appellant) stated as under: --

"The deceased was not of good character. He was injured after sunset somewhere outside village by some unknown persons. The occurrence was an unwitnessed one. The complainant party waited for Separas Khan to regain his senses and it -was therefore that the report was delayed. I have been falsely implicated due to my enmity with the deceased and the

He did not examine any witness in defence but produced certified copies of Kalandra under section 107/150, Cr.P.C., alongwith Magistrate's order, dated 24-6-1977 (Ex. DA) binding down the deceased for one year to maintain peace, Nikahnama dated 27-3-1970 (Ex. DB) showing Manzoor's marriage with Mst. Bibi (niece of the deceased), copy of school leaving certificate (Ex. DC), copy of plaint titled, Lal Khan and Bahadar versus Waris and Separas, dated 23-1-1984 (Ex. DD) and Superintendent of Police's letter dated 3-4-1984 (Ex. DE) showing Mst. Fateh Bibi as innocent.

8. Waris Khan (PW.9) brother of the deceased and first informant supported the prosecution story as given out by him in the F.I.R. He stated that Hakam Khan (appellant) gave three stick blows on the head of the deceased as a result of which he fell down. Then Mst. Fateh Bibi (acquitted accused) gave him a stick blow which, too, landed on his head. Both the accused thereafter ran into their house and bolted the door from within. He took the deceased in injured condition in a Suzuki Van to Chakwal Hospital reaching there at about 7 p.m., same day. The deceased's other relatives also reached there in a separate Suzuki Van an hour. later but they returned to the village the same night. The deceased was admitted in hospital for treatment. He went to police post Buchhal Kalan and lodged report Ex.PH with ASI Muhammad Akbar on 17-2-1984. According to him, Hakam Khan (appellant) had two fold motive for attacking the deceased. First motive was that 3/4 years before this occurrence Hakam Khan (appellant) and Separas Khan (deceased) had quarrelled with each other wherein the latter had caused injuries to the former but the matter was subsequently compromised. The second and immediate motive was that on the day of occurrence at "Rotiwela" (noon time) Hakam Khan (appellant) wanted to block the passage leading to the lands of the deceased to which the deceased took exception whereupon they exchanged hot words and although the matter was patched up by intervention of the villagers yet due to this grouse the appellant and his wife Mst. Fateh Bibi (since acquitted) attacked the deceased at the relevant time. In cross-examination he stated that he served Police Department as constable for 12 years. Muhammad Afzal, Muhammad Khan and Lal Khan lived in the lane of the deceased at a distance of about 30 yards from deceased's house. He admitted that Manzoor is son of sister of the appellant and that Mst. Bibi is daughter of deceased's sister, but denied that Manzoor had divorced Mst. Bibi at the instance of the appellant. He rather asserted that Manzoor and Mst. Bibi were never married to each other. He denied that the deceased was a bad character and had many enemies. He denied that the deceased had outraged the modesty of wife of Hakam Khan Balouch and on that Account Officer-in-Charge of police station Kallar Kahar initiated security proceedings against him. He admitted that Bahadar and Lal Khan filed a civil suit against him and his deceased brother claiming from them 73 Kanals of land and explained that the suit had been compromised 3/4 years ago. He denied that any such suit had been filed two days before the instant occurrence which was still pending. The deceased after receiving three blows by Hakam Khan fell down facing towards ground and did not raise any alarm. He admitted that Kallar Kahar police station is just on the pacca road leading from his village to Chakwal and police post Buchhal Kalan is 1 miles off the said road. He denied the suggestion that the deceased was found lying injured after Maghribwela outside the village and was removed to hospital and that F.I.R. was not lodged immediately in the hope that the deceased would regain senses and tell about his assailants.

9. Muhammad Aslam (PW. 6), the other eye-witnesses, is first cousin of Lal Khan husband of sister of the deceased. He largely corroborated the testimony of Waris Khan complainant (PW. 9). In his cross-examination he explained that at the relevant time he and Waris Khan complainant were standing in the gate of the house of Waris Khan (not the house of Separas Khan deceased) and that 3t was he who told the complainant that Separas Khan (deceased) was being injured by the accused persons whereupon Waris Khan PW saw the occurrence. He averred that he was examined by the police in the case one day after Separas Khan had died and not before. According to him the occurrence took place in front of the house of the appellant and that the door of the house of appellant opens towards north.

10. Learned trial Court considering the evidence on record observed that Mst. Fateh Bibi, co-accused of the appellant, was an old lady and that the occurrence took place in front of her house, therefore, is seems probable that on hearing commotion she merely came out to see as to what was happening in front of her door. She was, therefore, given benefit of doubt and acquitted. Learned trial Court further observed that delay occurred in lodging the F.I.R. was satisfactorily explained by the complainant saying that in transporting the injured to hospital for providing him medical aid consumed lot of time; and that mere relationship of the eye-witnesses with the deceased does not render their testimony doubtful in the absence of any motive on the part of PWs to falsely involve the appellant. Accepting the testimony of PWS learned trial Court convicted Hakam Khan under section 302, P.P.C. but awarded lesser penalty to him because the deceased and the appellant were closely related to each other and that there not exist enmity or ill-will between them prior to the occurrence. Feeling aggrieved there by the instant appeal has been filed. No appeal or revision against that acquittal of Mst. Fateh Bibi has been filed.

11. It is argued; by learned counsel, for the appellant that the deceased was a.; quarrel some person having many enemies who has been fatally wounded outside the village in an unwitnessed attack and that since no blood was found in front of the house of appellant, therefore, the story that the occurrence had taken place there is doubtful. Next argued that the eye-witnesses who are close relations of the deceased does not appear to have seen the occurrence and that is why report was delayed for about two days. It is further argued that the complainant denied certain 'facts the existence of which is proved by documentary evidence produced by the defence which prove' him to be a liar therefore his testimony cannot he relied upon and similarly evidence of Muhammad Aslam (P.W. 6) does not inspire confidence. Replying, learned state counsel assisted by complaints counsel stated that the documents produced by the appellant in defence to show the deceased as a person of unruly character, having both criminal anal civil litigation with others cannot be read in evidence for they have not been formally proved. He further stated that delay in lodging the F.I.R. occurred due to the fact that sufficient time was consumed in transporting the deceased to the hospital and in looking him after in the 'hospital. Therefore, he said, no inference for having lodged F.I.R. with delay could be drawn against prosecution.

12. I have carefully considered the arguments of learned counsel for the parties and also perused the record.

13. It would be seen from the facts narrated above that the prosecution case, mainly rests on the ocular evidence. The only question for determination before me is whether the testimony of the eye-witnesses inspires confidence and furnishes safe basis for conviction of the appellant on the capital charge On precautions own showing there is delay of 42 hours in lodging report Ex.PH at police post Buchhal Kalan which, as admitted before me, is at .a distance of a few miles from the place of occurrence. It is also in evidence that while going to Chakwal from the place of occurrence police station Kallar Kahar falls in the way just on the road side. The first concern of the complainant, of course, was to provide medical aid to the injured who had suffered serious head injury and was unconscious. According to Waris Khan complainant the deceased who was still alive was taken in a Suzuki van to Chakwal hospital reaching there at 7 p.m., the same evening where his other relatives reached after half an hour but to the contrary medico-legal report Ex.PD shows that the injured was first taken to Civil Dispensary Bhaun where Dr. Khalid Javed (PW. 3) examined him at 1 a.m. (mid-night) and it was he who referred him to Chakwal hospital. Whatever be the case the deceased had been admitted by morning of 16-2-1984 in Chakwal hospital, where after there was nothing which prevented him from going to the police station leaving the injured in the care of his relatives and make a report there but he did not do so for the whole day long and also the following night and lodged the report on the third day of the occurrence, that is, on 17-2-1984 at 10.30 a.m. This, to my mind, is inordinate delay on the part of Waris Khan complainant (PW. 9) particularly because he is not a simpleton villager but a retired Constable who served Police Department for 12 years and fully knew the consequences of a delayed report. I further find that had this witness been present at the time of occurrence then it would not have consumed 8 hours to take the deceased to Bhaun Dispensary, a few miles away from the place of occurrence. Muhammad Aslam (PW. 6), the other eye-witnesses, averred that he stayed behind in the village when the deceased was removed by the complainant to the hospital. He is also a close relative of the deceased, There is no explanation why he did not go to the police station to lodge the report. In these circumstances, 42 hours delay in lodging the F.I.R. in this particular case weighs heavily against the prosecution.

14. The occurrence allegedly took place in the village Abadi in front of the house of the appellant. The lane of deceased is inhabited and the houses of Muhammad Sharif, Muhammad Afzal and Muhammad Khan, etc. are close by but strangely enough none of the aforesaid residents of the locality has come forward to support the prosecution case. Learned counsel for the complainant stated that in our society generally people are reluctant to become witness in such cases fearing harm at the hands of the accused, therefore, the non-appearance of witnesses of the locality does not adversely affect the prosecution case. I think, it would have been good excuse for local inhabitants not to come forward to support prosecution provided the appellant has been proved to be a person of dangerous and desparate character but there is no such material on record against the appellant non-appearance of uninterested and independent residents of locality supporting the prosecution case is of course another circumstance against the prosecution.

15. It is true that contents of the certified copies of plaint Ex.DD and police Kalandra under section 107/150, Cr.P.C., Ex.DA cannot y be read in evidence as they have not been formally proved but these documents certainly prove this much that the deceased had civil and criminal litigation with persons other than the appellant. The defence story that the deceased having many enemies was attacked and injured outside the village by unknown persons and was picked up late at night while lying unconscious finds support from the fact that he was taken to Bhaun Dispensary as late as 1 a.m., (mid-night) which is only a few, miles away from the place of occurrence. Again, failure, on the part of Waris Khan complainant, brother of the deceased, to lodge report till third day of occurrence makes the matter still worse for the prosecution. I, therefore, hold that Waris Khan complainant t had not seen the deceased being attacked and injured fatally.

16. As for Muhammad Aslam (PW. 6), the other eye-witness, I do not find it safe to accept his evidence either because he on his own wing appeared before the police for the first time one day after the deceased had died. The deceased died on 24-2-1984. It means that the witness appeared before the Investigating Officer on 25-2-1984, that is, 10 days after the occurrence. The Supreme Court of Pakistan in Muhammad Sadiq and another v; The State P L D 1960 S C 2231 disbelieved any eye-witness who kept silent for 24 hours after the occurrence.

17. For what has gone above, I field, that ocular evidence adduced in this case hoes not inspire confidence and it hardly furnishes safe basis for convicting the appellant on capital charge. In result this appeal is allowed, the conviction and sentence of the appellant is set aside and he is hereby acquitted, to shall be released forthwith if not wanted in any-other case criminal revision, falls automatically.

S.A./H-29/L Appeal accepted.

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